INTERNATIONALCOURTOFJUSTICE
ACCORDANCEWITHINTERNATIONALLAWOF
THE UNILATERALDECLARATIONOFINDEPENDENCEBYTHE
PROVISIONALINSTITUTIONSOFSELF-GOVERNMENTOFKOSOVO
(REQUESTFORANADVISORYOPINION)
ANSWEROFTHE REPUBLICOFSERBIATOTHE QUESTIONSPUTTO
THEPARTICIPANTSIN THEORALPROCEEDINGSBYJUDGESKOROMA,
BENNOUNAANDCANÇADOTRINDADE
1. QUESTIONPUTBYJUDGEKOROMA
The question:
"Ithas been contended that international law does not prohibit the secession of a
territory from a sovereign State. Could participants in these proceedings address the
Court on the principles and mies of international law, if any,de the colonial
context, permit the secession of a territory from a sovereign State without the latter's
consent?" (CR 2009/33, p. 23)
1.1. Outside the colonial context, secession is a highly exceptional way of c!'eating
States in contemporary international law. Practice since the establishment of the
United Nations demonstrates that consent from the sovereign State has been
present in ail situations of successful secession giving rise to the birth of new
States. This consent has either been more or less contemporaneous with the secessionist attempt (as in the cases of the Baltic States and Eritrea) or it bas
followed the secessionist attempt (as was the case of Bangladesh).2 As is well
known, outside the specific case of the Baltic States, the remaining republics of
the Soviet Union gained îndependence by agreement among the interested
parties, and the breaking up of the Socialist Federal Republic of Yugoslavia was
considered by the international commuriity to constitute a situation of
3
dissolution of the predecessor State, and not a case of secession. Other
situations of separation of Stateshave been the outcome of an internat process in
which the parent State and one of its cornponents have agreed on the separation
4
of the latter (as was the case of the separation of Singapore from Malaysia, or
the separation of Montenegro from the State Union of Serbia and Montenegro),
and are sometimes referred to as cases of devolution. 5
1.2. The response to the question is twofold. First, there are no specific rules of
international law authorizing secessîon without the sovereign State's consent. In
particular, during the proceedings it has been demonstrated that the doctrine of
6
so-called "remedial secession" is not an existing rnle of international law. In
order for their arguments to be logically coherent, those participants that claim
that internationai law lS purpoi:tedly"neutral" with regard to secession must
iml?licitly acknowledge this. Second, there can be very exceptional situations
where, in accordance with applicable general rules and principles of
international law, secession would be permitted.
1
The Baltic States effectively reasserted their independence in August 1991 and the Soviet Union
recognised their independence on 6 September 1991. Ethiopia accepted the holding ofa referendum
leading to the independence of Eritrea on 4 May 1993 (see Eritrea/Ethiopia Claims Commission, Partial
Award (Civilian Claims) (Eritrea 's Claims), 17 December 2004, available on the website of the
Pennanent Court of Arbitration at http://www.pca-cpa.org/showpage.asp?pagid= 1151, para. 7). This
latter case can also be seen as one of devolution.
2
3Pakistan accepted the secession of Bangladesh on 2 February 1974. .
For the Soviet Union, see Agreement establishing the Commonwealth of Independent States, (1992) 31
ILM 143,and the Protocol of Alma Ata of21 December 1991, (1992) 31 ILM 147. For the SFRY, see
Opinions No. 1 and 8 of the Conference on Yugoslavia, Arbitration Commission, 29 Novcmber 1991, 92
ILR 162, and 4 July 1992, 92 lLR 194, respectively; and Security Council resolutions 757 (1992), 777
(l992), and 1326 (2000), and General Assembly resolution SS/l 2.
4Sovereignty over Pedra Branca/Pulau Balu Puteh, Middle Rocks and South Ledge
5Malaysia/Singapore},judgment of23 May 2008, paras. 29 and 18S.
6J. Crawford, The Creation of States in international Law (ed. 2006), p. 330.
CR 2009/24, Mr. Kohen (Serbia), pp. 80-83, paras. l l-16; CR 2009/29, Ms. Xue (China), pp. 34-36,
paras. 19-26; CR 2009/30, Mr. Gevorgian (Russian Federation), pp. 43-44, paras. 19-22; CR 2009/30,
Ms. Escobar Hemândez (Spain), pp. 17-19, paras.37-44.
2 L3. International practice offers scarce examples of the latter situations. First, this
could be the case of the secession of entities from a State where these entities
had previously been illegally incorporated into the State over a certain period of
time. For example, this was the dominant perception of the situation of the
Baltic States when they first declared their independence in 1990/91. Second,
there might be the situation of a territory that was integrated into a State through
a resolution of the United Nations under certain conditions, where these
conditions were subsequently not respected, tliereby justifying the secession of
the incorporated entity from the State with the assistance of the United Nations.
An example of thls would be the case of Eritrea. It was a decision of a United
Nations organ (the General Assernbly), which had the capacity to decide the fate
of the territory (on the basis of Article 23 of the 1947 Treaty of Peace with
Italy7), and which decided to integrate Eritrea into Ethiopia on condition of its
8
autonomy and within the frarnework of a federated State. After a prolonged
period of many decades in which the conditions set out in General Assembly
resolution 390 (V) were not met, the United Nations participated in the final
process that led to the holding of a referendum in which the Eritreans opted for
independence.
1.4. A third hypothesis according to which international law may permit secession is
where the constitutional order of the parent State envisages this possibility with
respect to some of its components. This is currently the case of Ethiopia, 9
Uzbekistan, 10and St. Kitts-and-Nevis. 11 It can also be that internai agreements
7
See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, l.C.J. Reports /994, p. 19, para. 34.
8 General Assembly resolution 390 (V), Article I ofwhich provides "Eritrea shall constitute an
autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian Crown."
9
Article 47 of the Constitution ofEthiopia, available in English on the websitc of the Parliament of the
Federal Democratic Republic ofEthiopia at http://www.ethiopar.net. Article 47(2) provides "Nations,
Nationalities and Peoples within the States enumerated sub-Article 1ofthis article have the right to
establish, at any time, their own States." This right is exercisable according to the procedures set out in
Article 47(3).
0
' Article 74 of the Constitution of Uzbekistan, which provides "The Republic of Karakalpakstan shall
have the right to secede from the Republic ofUzbekistan on the basis ofa nationwide referendum held by
the people ofKarakalpakstan." Available at
http://www.umid.uz/Main/Uzbekistan/Constitution/constitution.htm 1.
11
Article 113 of the Federation of Saint Kilts and Nevis Constitutional Ordcr of 1983, 1983 No.881,
available on the website of the Office of the Prime Minister of St. Kitts and Nevis at
http://www.cuopm.com . This article provides thatThe Nevis Island Legislature may providc that the
island of Nevis shall cease to be federated with the island of Saint Christopher and accordingly that this
3 12
also foresee the possibility of separation, as is the case of Sudan. ln the past,
this was also the case in the former Soviet Union for the Soviet Socialist
13 14
Republics, in the former SFRY for its six constitutive nations, and in the
15
Union State of Serbia and Montenegro for its two. components. This
acknowledgment at the domestic level that the secession of a component of the
Statc is legally possible is not a matter exclusively for domestic law.
International law must take notice of the recognition by domestic law that some
internai units of a State are entitled to secede or to exercise an external right of
self-determination. If,in a hypothetical situation, these constitutional provisions
recognizing a right to secede are not respected by the State, there might be room
for the acceptance of the secession at the international level, through the
'
application of the right to self-determination to these entities previously
recognized by the sovereign State itself as having such a right, which has an
international effect.
1.5. It is clear that the case of the unilateral declaration of independence by the
Provisional Institutions of ~elf-Government of Kosovo does not fall within any
of the extraordinary circumstances mentioned above. On the contrary, as
demonstrated during the advisory proceedings, this ·ëase is one of non
conformity with international law.
Constitution shall no longer have effect in the island of Nevis." This must be done in accordance with the
other provisions of Article 113.
12Machakos ProLocolof20 July 2002, Chapter 1of the Comprehcnsive Peace Agreement between the
Government ofSudan and the Sudan's Pcople's Liberation Movement/Army of9 January 2005. See:
Abyei Arbitration, Final Award o/22 July 2009,available on the website of the Permanent Court of
Arbitration at the following address: http://www.pca-cpn.org/showpage.asp?paid=1306, p. 244, para.
706: ·
13Article 72 of the 1977 Constitution of the U.S.S.R. provides that "To every Union Republic is reserved
the right freelysecede from the U.S.S.R."
14
The Basic Principle I of the Constitution of the SFRY, 1974, provided that "[t]he nations of
Yugoslavia, proceeding from the right of every nntion to self-dctermination, including the right to
secession... " (Serbia WS, Annex 52). As Serbia has already noted during the written proceedings, the
Kosovo Albanians were nota constitutive nation of the SFRY (Serbia WS, pp. 72-76; para.· 173-187).
The autonomous provinces of Kosovo and Vojvodina did not therefore have a right to secede under the
1974 constitution.
15
Article 60 of the Constitutional Charter of the State Union State of Serbia and Montenegro (Serbia WS,
Annex 58).
4 2. QUESTION PUT BY JUDGE BENNOUNA
The question:
"Est-ce que les auteurs de la déclaration unilatérale d'indépendance des institutions
provisoires d'administration autonome du Kosovo ont fait auparavant campagne, lors de
l'élection de novembre 2007 de l'assemblée des institutions provisoires
d'administration autonome du Kosovo, sur la base de leur volonté de déclarer
unilatéralement, une fois élus, l'indépendance du Kosovo, ou bien ont-ils, au moins,
présentéà leurs électeurs la déclaration unilatérale d'indépendance du Kosovo comme
l'une des alternatives de leur action future?" (CR 2009/33, p. 24)
2.1. In response to the above question posed by Judge Bennouna, Serbia firstly notes
that elections for the Assembly of Kosovo were held on 17November 2007 as a
result of a decision of the Special Representative of the Secretary-General in
..
Kosovo issued on 31 August 2007. The decision to hold elections was
announced after a meeting between the Special Representative and the Kosovo
Albanians' representatives at the status negotiations during which it was agreed
that the status process had "absolute priority" and that "the holding of elections
was conditioned on the political parties not acting in any way that is detrimental
16
to the status process."
17
2.2. The elections, in which only 42.8 % of the electorate participated, were
monitored by the Council of Europe Election Observation Mission
("Observation Mission"), which was invited by UNMIK to lead an independenl
18
international observation of the electoral process. The reports .of the
16
See "SRSG announces elections date for Kosovo", UNMIK press release, 31 August 2007,
UNMIK/PR/1692, available at:
http://www.unmikonline.org/DPl/PrcssRelease,nsf/0/2494Ft76CFDFB541C12573
48005BAD33/$FILE/
692
r;·ee ieportofthe ecre ary- enera on te Um etdN a ions n erimd mm1strat1onM'1ss10nm Kosovo,
UN Doc. S/2007/768 (3 January 2008), para. 3.
18Council of Europe Election Observation Mission V in Kosovo (CEEOM V), Final Report, 28 March
2008, para. t, available at http://www.coe.int/t/dc/press/news/CEEOM. kosovo %20EN.pdf.
5 Observation Mission and of the election observers from the Council of
Europe's Congress of Local and Regional Authorities (who also participated in
the Observation Mission), provide a detailed account of the November 2007
elections.19
2.3. With respect to the issue raised by Judge Bennouna, the report of the election
observers from the Congress of Local and Regional Authorities states as
follows:
"9. [...] There was a significant effort made by the political
entities to reach people through TV and the print media. A
significant focus fell on policy issues in the campaign, rather
than a concentration on personality politics or the 'Big Politics'
issue of Status - which did not ultimately overwhelm the
campaign.
1O. In the local elections, there was a continuons emphasis
during the campaign on issues such as - Water, Electricity,
Illegal Development, Infrastructure and Jobs. Thiswas resonated
in the Assembly campaign, but was further augmented by such
issues as - Health, Education, Corruption and Highways.
There was a Memorandum of Understanding signed by the
Political Parties on October 5 11\ 2007, to keep the 'Status
Question' out of the election, and that largely worked. Unlike in
previous campaigns, there were not many Albanian double
headed eagles to be seen fluttering from flagpoles around the
towns. Resulting from this, there was a realism to the carnpaign
that seemed to reflect the concerns of the Kosovan people[...]."
19See ibid. & Kosovo Municipaland AssemblyElections(Serbia)observedon 17Novcmber and 8
December2007, Explanatory Mcmorandum,StandingCommittcc,Congressof Local and Regional
Authorities,Doc. CG (14)34REP (31 January2008),availableat
hltps://wcd.coc.intJViewDoc.jsp?id=1243331&Site=COE&BackColorInternet=DBDCF2&BackColorlntr
anet=FDC864&BackColorLogged=FDC864.
2°KosovoMunicipaland AssemblyElections(Serbia)observedon 17November and 8 December2007,
supranote 19,paras. 9-10.
6 2.4. The above account is confirmed by the final report of the Election Observation
Mission:
"As wished by the international community, the political
campaign was largely focused on employment, economy,
educatibn, health and local issues, rather than on the issue of the
21
future status of Kosovo."
2.5. The above testifies that the November 2007 elections were from the very
beginning intended to be detached, as far as possible, from the final status
process and, in particular, were not to came into conflict with that process. This
was accepted by the leaders of the Kosovo political parties at their meeting with
22
the Special Representative of the Secretary-General held on 31 August 2007.
They further committed themselves "to keep[ing] the 'Status Question' out of
the election" by signing the Meinorandum of Understanding of 5 October
2007. 23
21
Council of Europe Election·observation Mission V in Kosovo (CEEOM V), Final Report,supra note
22,para. 106.
See "SRSG announces elections date for Kosovo", UNMIK press release, 31 August 2007supra note
16,and Report of the Secretary-General on the United Nations lnterim Administration Mission in
Kosovo, UN Doc. S/2007/582 (28 Septcmbcr 2007), para. 4.
23
See Kosovo Municipal and Assembly Elections (Serbia) observed on 17 November and 8 December
2007, supranote 19, para. 10.
7 3. QUESTION PUT BY ,JUDGECANÇADO TRINDADE
The question:
"United Nations Security Council resolution 1244 (1999) refers, in its paragraph 11 (a},
to "substantial autonomy and self-government in Kosovo", taking full account of the
Rambouillet Accords. In your understanding, what is the meaning of this renvoi to the
Rambouillet Accords? Does it have a bearing on the issues of self-determination and/or
secession? If so, what would be the prerequisites of a people's eligibility into statehood,
in the framework of the legal régime set up by Security Council resolution 1244 (1999)?
And what are the factual preconditions for the configurations of a 'people', and of its
eligibility into statehood, under general international law?" (CR 2009/33, p. 24)
A. Meaning of the Renvoi Contained in Paragraph 11 (a) of Security-Council
Resolution 1244 (1999) Referring to Substantial Autonomy and Self
Government in Kosovo Taking Full Account of the Rambouillet Accords
I. Content of paragraph 11 (a)
3.1. Paragraph 11 (a) of United Nations Security Council resolution 1244 (1999)
provides:
"The Security Council,
[..]
1i. Decides that the main responsibilities of the international
civil presenèe will include:
(a) Promoting the establishment, pending a final settlement, of
substantial autonomy and self-government in Kosovo, taking
full account of annex 2 and of the Rambouillet accords
(S/1999/648);"
83.2. Accordingly, the international civil presence, i.e. UNMIK, was tasked by the
Security Council to promote substantial autonomy ('autonomie') and self
government ('auto-administration') in Kosovo. In so doing UNMIK was
required to "fully take into account" (apart from annex 2 of Security Council
resolution 1244 (1999)) the Rambouillet accords.
3.3. Itmustfirst be noted that, as bas already been demonstrated in Serbia's written
24
submissions, the notions of substantial autonomy and self-government
mentioned in paragraph 11 (a) of resolution 1244 (1999) do not and cannot
amount to independence.
3.4. Secondly, given that no final settlement within the meaning of Security Council
resolution 1244 (1999) generally, and its paragraph 11 (a) in particular, has yet
25
been reached, paragraph 11 (a) of Security Council resolution 1244 (1999)
still applies and continues to govern the legal status of Kosovo.
II. Meaning of the renvoi
3.5. As to the renvoi to the Rambouillet accords contained in paragraph 11 (a), it
must be further noted that it is a limited one since it only requires UNMIK,
when promoting substantial autonomy and self-government in Kosovo, to take
full account of the Rambouillet accords. Such accords therefore are not made
binding as such upon either UNMIK or the parties by virtue of paragraph 11(a)
of Security Council resolution 1244(1999).
3.6. ln that regard it should also be mentioned in passing that a similar requirement
is contained in paragraph 11 (e) of resolution 1244 (1999), providing that the
international civil presence shall facilitate
24See Serbia WS, paras. 728 et seq., 732 et seq.; Serbia WC, para. 433.
25See Serbia WS, paras. 750 et seq.; 913 et seq.; Serbia WC, paras. 436 et seq.
9 "a political process designed to determine Kosovo's future
26
status, taking into account the Rambouillet accords."
3.7. When compared with the wording of paragraph 11 (a) ("taking full account"),
the wording of paragraph 11 (e) ("taking into account") further limits the
relevance of the Rambouillet accords when it cornes to reaching a negotiated
agreement on the final status of Kosovo.
3.8. It should also be nbted in this regard that the Rambouillet accords merely
27
provide for a mechanism to reach a final status agreement, but not for a final
settlement as such. This mechanism provides that the will of the people is but
one of four equally relevant factors of which the other three are: the view of the
relevant authorities; each Party's efforts regarding the implernentation of the
agreement; and the principles contained in the Helsinki Final À.et.
3.9. As far as paragraph 11 (a) of Security Council resolution 1244 (1999) is
concerned, it stipulates that the international civil presence, when setting up the
system of self-government in Kosovo providing for substantial autonomy
within the FRY/Serbia, had to take into full account a detailed draft
constitutional organization of the autonomy regime for Kosovo, as envisaged
by the said accords. 28
3.10. In 2001, UNMIK, as the international civil presence foreseen in resolution 1244
(1999), accordingly implemented paragraph 11 (a) of Security- Council
26Emphasis added.
27The relevant provision provides:
"Tbree years after the entry into force ofthis Agreemean international meeting sha/l be
convened to determine a mechanismfor afinal settlemen~for Kosovo, on the basis of the will of
the people, opinions of relevant authorities, each Party's efforts regarding the implernentation of
this Agreement, and the Helsinki Final Act, and to undertake a comprehensive assessment of the
irnplementation ofthis Agreement and to consider proposais by any Party for additional
measures." (emphasis added)
Chapter 8, Article 1(3) of the Rambouillet Accords: lnterim Agreement for Peace and-Government in
28sovo, see UN doc. S/1999/648 (7 June 1999), Annex (Dossier No. 30).
Asto the autonomous régime envisaged in the Rambouillet accords sec in particular Art.lthe
therein proposed Constitution of Kosovo.
10 resolution 1244 (1999) by adopting the Constitutional Framework for
Provisional Self-Government. 29
3.11. It is this Constitutional Framework for Provisional Self-Government which
regulates and limits the extent ~f competences to be exercised by the
Provisional Institutions of Self-Government in Kosovo in accordance with
paragraph 11 (a) of Security Council resolution 1244 (1999) and by the same
token also provides for the required substantial autonomy.
B. The Bearing of the Renvoi to the Rambouillet accords on the Issues of Self-
Determination and Secession
3.12. By referring to the Rambouillet accords as needing to be fully taken into
account when establishing substantial autonomy and self-government in
Kosovo, the Security Council essentially accepted that the degree of autonomy ..
and self-government provided for Kosovo in the said draft agreement was
appropriate in order to safeguard the rights of the population of Kosovo (and
thus their exercise ofinternai self-dctennination with.inthe FRY/Serbia), while
at the same time safeguarding the territorial integrity of the FRY/Serbia.
3.13. The Security Council thus established a careful balance between the interests of
the territorial State on the one band and those of the Albanian population of
Kosovo on the other.
3.14. By including the renvoi to the Rambouillet accords in paragraph 11 (a) as a
benchmark for Kosovo's degree of autonomy and self-government, the $ecurity
Council also excluded secession, and in particular so-called remedial secession,
as a possible response to the Kosovo crisis, since it considered the Rambouillet
model of autonomy as being a sufficient safeguard for the population of
Kosovo.
29UNMIK/REG/2001/9 of 15 May 2001.
113.15. It must further be noted that the Rambouillet accords carefully avoided any
reference to a 'people of Kosovo' or a 'Kosovo people'. Rather, the
Rambouillet accords use, throughout the text, the tem1 'Kosovo
population' /'population du Kosovo'. 30 It follows that the drafters deliberately
did not equate the 'Kosovo population' with the .notion of a 'people' as
understood in general international law.
1
C. Prerequisites of a People s Eligibility into Statehood in the Framework of the
Legal Régime Established by Security Council Resolution 1244 (1999)
3.16. As noted above, the Rambouillet accords do not refer to the population of
Kosovo as a people entitled to self-determination, nor do the Rambouillet
accords refer in any way to a right of self-detem1ination, and even less to
secession, of the population of Kosovo.
3.17. Indeecl,~n expÎicit proposai by\hè Kosovo Albanian side to insert a reference
to the entitlement of the "people of Kosovo [...] to exercise the right to self
31
determination" in the Rambouillet accords was not accepted.
3.18. Similarly, no understanding was reached during the Rarhbouillet negotiations
that the 'will of the people' - even when taken alone and not as one of four
equally relevant factors - was considered to ·be tantamount to a right of
secession.
3.19. lt was only the delegation of the Kosovo Albanians which had du_ringthe
negotiations uni!aterally stated that in their understanding the 'will of the
30
See the Rambouillet accords, supra note 27: Framework, Art. II, No. 6; Chapter 1,Art. II, No. 1, lit. b
31) and (ii), No. 3; Chapter lI, Art. VIlita (ii).
See Kosova Oelegation Statement on New Proposai farSettlemenof 18 February 1999, reproduced
inM. Weller, The Crisis in Kosovo 1989-1999 (1999), pp. 444 - 445.
12 32
people' clause included a right to hold a referendum. However, even in their
own view, the outcome of such a referendum would only be considered by a
future international conference to be held in accordance with the Rambouillet
accords but would not, as such, determine the future status of Kosovo.
3.20. Besicles, it was only the United States delegation that indicated a willingness to
give certain bilateral assurances to the effect that the fonnulation referring to
the 'will of the people' did refer to a right of the population of Kosovo to make
33
manifest their will in relation to the future status of the territory.
3.21. In contrast thereto, French Foreign Minister Hubert Védrine, as one of the
sponsors of the Rambouillet conference, cbnfirmed that the agreement
"n'avaient pas retenu l'organisation d'un référendum au Kosovo
à l'issue de la période de transition, comme l'avaient demandé
les Kosovars, mais seulement une clause de rendez-vous afin de
prendre en compte les souhaits de la population" 34
3.22. ·Security Council resolution··1244 (1999) in tum neither refers to a 'people of
Kosovo' nor to a 'Kosovo people'. This stands in sharp contrast to Security
Council practice in other cases, where the Council has, to give but one example,
35
inter alia explicitly referred to "the East Timorese people".
3.23. Accordingly, the Security Council clearly did not consider the population of
Kosovo to be a people entitled to externat self-determination and thus even less
as possessing a right of secession.
n Letter ftorn the Delegation of Kosovo to US Sccrelary of State Albright of 23 February 1999,
reproduced in Weller, ibid., p471. .
JJSee M. Weller;"The Rambouillet conforcnce on Kosovo", International Affairs 1999, p. 211 et seq.
(232). See, also, Secretary of State Albright Press Conference, Rambouillet, 23 February 1999:
"(... )a number of factors will be taken into consideration by that meeting as to the permanent
status of Kosovo, among them the view ofthe people.And the Kosovars interpret this. their
interpretationof it is that it's a referendum."
M. Welter, The Crisis in Kosovo /989- /999 (!999), pp. 472 - 474, al p. 473 (emphasis added).
34"[ ..had not decided on the holding of a referendum in Kosovo after the transitional period, as the
Kosovars had demanded, but only a review clause to take into account the wishes of the population". See
Assemblée nationale, commission des affaires étrangères, compte rendu No. 31, 13 April 1999 (séance de
17h00); available at: http://www.assemblce-nationale.fr/l l/cr-cafe/98-99/c989931.asp.
35Security Council resolution 1246 (1999), operative para1.
133.24. This was confinned in the aftermath of the adoption of Security Council
resolution 1244 (1999) when the then French Minister of Foreign Affairs
Védrine again stated:
"Ni les accords de Rambouillet, ni aucun autre texte ne
36
prévoient de rétërendum sur l'indépendance."
3.25. It follows therefore, that within the framework of the legal régime established
by Security Council resolution 1244 (1999), there is no room for the eligibility
of a separate "people" into statehood, unless this was agreed by both parties as
part of the political process related to the future status of Kosovo and endorsed
by the Security Council.
D. "And what are the factual preconditions for the configurations of a 'people',
and of its eligibility into statehood, under general international law?"
3.26. International law has provided clear criteri·afor the definition of a "people"
regarded as entitled to the right of self-determination and clear mechanisms for .
the exercise of this right. Not to do so, of course, might have led to a situation
where any group could self-identify as a "people" and then demand the
international legal right of secession from independent States, something which
would seriously destabilise the international legal and political order.
3.27. The operative areas of the legal norm of self-determination have been clearly
idenfüied in international legal practice and doctrine. Essentially, the norm of
externat self-determination as conferring righls under international law has been
Jr"Neither the Rambouillet Accord, nor any other text envisaged a referendum on independence." See
Assemblée nationale, commission de la défense nationale et des forces armées, compte rendu No. 33, 22
June 1999 (séance de 18h30); available at: hllp://www.assemblce-nalionale.fr/11/cr-cdef/98-
99/c989903 8.asp .
14 7
accepted as applying with regard to mandate and trusteeship territories/ the
38
colonial territories of the former European empires and, to some extent,
foreign occupations. 39 In this way the requisite self-determination unit has been
recognized. Self-determination also applies as a principle of human rights
within independent States in the form of internat self-determination. 40 It
manifestly does not apply as a general rule legitimizing secession from
independent States nor does it confer any rights of secession upon groups,
entities or peoples within such independent States.
3.28. International law has specifically identified other groups, such as minorities and
indigenous peoples, as having rights under international law (either directly or
by means of individual members of such groups). But sueh rights are strictly
limited to rights operative within the sovereign State in question and are stated
explicitly as not to be interpreted as implying any contradiction to the
overriding principle of territorial integrity. For example, the UN Declaration on
the Rights of Persans Belonging to National or Ethnie>Religious and Linguistic
Minorities, 1992 provides in Article 1 that States, "shall protect the existence
and the national or ethnie, cultural, religious and linguistic identity of minorities
within their rêspectiveterriiories" {èmpha:sisadded) and the ·Declaration
concludes by explicitly stating in article 8(4) that:
"Nothing in the present Declaration may be construed as
pennitting any activity contrary to the purposes and principles
37See articl22 of the Covenant of the League of Nations. See also International Status a/South West
Africa, Advisory Opinion of I1July 1950, J.C.J Reports 1950, pp. 128,132; Legal Consequencesfor
States of the Continued Presence of South Africain Namibia (South WestAfrica) notwithstanding
Security Council resolution 276, Advisory Opinion o/2! June /971, I.C.J. Reports 197/,pp.16, 28-9;
Certain Phosphate Lands in Nauru (Nauru v. Australia),Judgment o/26 June 1992, I.C.J.Reports 1992,
· pp.240, 256-7; and Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria: Equatorial Guinea intervening), Judgment of /0 October 2002, J.C.J. Reports 2002,pp 303,
409.
38 See Legal Consequences for States of the Continued Presence of South Africain Namibia (South West
Africa) notwithstanding Security Council resolution 276, Adviso1y Opinion of 21une /971, J.C.J.
Reports 1971, pp. 16, 31 and Western Sahara, Advi.wry Opinion, !.C.J. Reports 1975pp. 12, 31-3. See
also Legal Consequences of the Construction of a Wallin the Occupied Palestinian Terrilory, Advisory
Opinion, I.C.J. Reports 2004,pp. 136, 172 and the Quebec Secession case, 1998) 2 S.C.R. 217, para.
132.
39
See as regards Palestine, for example, Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, l.C.J. Reports 2004,. 136, 182-3.
4~ See the Quebec Secession case, 1998] 2 S.C.R. 217, para. 126.
15 of the United Nations, including sovernign equality, territorial
41
integrity and political independence of States".
3.29. Further, the UN Declaration on the Rights of Indigenous Peoples, 2007,
specifically recognizes the right to self-determination of such peoples (articles 1
and 3) and states in article 46 (1) that:
"Nothing in this Declaration may be interpreted as implying for
any State, people, group or persan any right to engage in any
activity or to perform any act contrary to the Charter of the
United Nations or construed as authorizing or encouraging any
action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and
42
independent States".
3.30. The question of the definition of "people" was addressed in the Western Sahara
case, where the Court declared that:
''Thé\,àffaity--of the principle of self-determination, defined as
the need to pay regard to the freely expressed will of peoples, is
not affected by the fact that in certain cases the General
Assembly has dispensed with the requirement of consulting the
inhabitants of a given territory. Those instances were based
either on the consideration that a certain population did ncit
constitute a 'people' entitled to self-determination or on the
conviction that a consultation was totally unnecessary, in view
43
of special circumstances" .
3.31. This important statement by the Court indicates that a particular definition of a
"people" for the purposes of recognition of the right to self-determination has
emerged and in seeking to identify whether or not a parlicul.ar claimed group
41
42General Assembly resolution 47/135.
General Assembly resolulion 61/295.
43Western Sahara, Advisory Opinion, l.C.J. Reports 1975, pp. 12,33.
16 constitutès a "people" for the purposes of self-determination in international
law, recognition by the competent international organization is required. The
United Nations, therefore, has developed a methodology for identifying
relevant territories and laying clownspecific ways to apply the principle of self
determination. 44 A "people" not so identified and thus falting outside the
classification of a self-deterrnination unit for the purposes of the full exercise of
the right would, accordingly, be entitled to the exercise of human rights
operative within the territorial configuration of the particular independent State
in question as an expression of what is often termed internai self-determination.
:3.32. The only exception to this analysis might be where the Constitution of the Stale
in question specifically provides for the right of specific "peoples" within that
State to secede. Examples of this are referred to above in paragraph 1.4.
However, this is clearly not the situation with regard to the position of Kosovo
within Serbia.
Belgrade, il Dècernber 2009
Head of the Legal Team of the Republic of Serbia
44Seee.g. GeneralAssemblyrcsolulions9 (I), 66(I), 1541(XVI),and 1654(XVI).
17
Reply of the Republic of Serbia to questions posed by Judges Koroma, Bennouna and
Cançado Trindade at the close of the oral proceedings